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2019 DIGILAW 1297 (ALL)

Rudra Pandey v. State of U. P.

2019-05-13

MOHD.FAIZ ALAM KHAN

body2019
ORDER : Mohd. Faiz Alam Khan, J. 1. This habeas corpus petition has been filed on behalf of Sri. Rudra Pandey, a minor aged about 8 years, son of late Sri. Sumit Pandey by his next friend, his mother Smt. Neha praying to issue a writ, order or direction in the nature of habeas corpus to produce the petitioner (corpus) from the illegal custody of opposite party Nos. 4 and 5 and to handover his custody to her as she being the natural mother, is entitled for the custody of the corpus. 2. The petitioner in her petition has stated that petitioner No. 2 was married to late Sri. Sumit Pandey in the year 2010. Her husband Sri. Sumit Pandy was the son of opposite party No. 4 and was a practicing lawyer at Civil Court, Allahabad. Due to their wedlock, petitioner No. 1- Rudra Pandey was born on 09.02.2010. Sumit Pandey was murdered on 23.07.2016 by unidentified assaultants at Allahabad. Death certificate issued pertaining to his death on 29.09.2016 is placed on record. It is further stated in the petition that after the death of her husband i.e. Sri. Sumit Pandey, petitioner No. 2 was not properly looked after by her in-laws and her relation with in-laws became strained and she moved to her parents' house at Lucknow and started residing there. Petitioner No. 2 married second time with Ashish Kumar Dubey, who is doing a private job at Satna (M.P.). Petitioner No. 2- Smt. Neha is now residing at her parents' house and her husband Ashish Kumar Dubey also resides with her. It is further stated in the petition that opposite party Nos. 4 and 5 took custody of petitioner No. 1 illegally, long after the death of her husband and when she requested to opposite party Nos. 4 and 5 to hand over her son, they assured that the custody of her son will be handed over to her in the first week of October, 2018, but they subsequently refused and threatened her not to talk about the custody of the corpus. According to the petitioner, the corpus has been illegally detained by opposite party Nos. 4 and 5 and is not being given to petitioner No. 2, who is the mother and natural guardian of the corpus. It is further stated that the welfare of petitioner No. 1 (corpus) cannot be looked by opposite party Nos. According to the petitioner, the corpus has been illegally detained by opposite party Nos. 4 and 5 and is not being given to petitioner No. 2, who is the mother and natural guardian of the corpus. It is further stated that the welfare of petitioner No. 1 (corpus) cannot be looked by opposite party Nos. 4 and 5 in absence of the mother and they want to grab the property of the corpus and there is a danger that the corpus can be eliminated as opposite party No. 4 has got huge movable and immovable properties and petitioner No. 1 (corpus) is expected to inherit the same. The age of the corpus is about 8 years and therefore, she being the natural and biological mother of the corpus, is entitled to the custody of her son. 3. Notice was issued to opposite party No. 4 and a counter-affidavit submitted by him stating therein that writ petition is not maintainable as the same is with regard to the custody of a minor child, who is living along with his grant parents after he (corpus) was abandoned by petitioner No. 2 (mother), who is now claiming the custody of the corpus on the basis of his natural guardian. It is further stated in the counter-affidavit that the corpus is living with he grandparents after being abandoned by her mother, who had solemnized second marriage with a person, who had children from his earlier wife and the petitioner herself could not manage the two families at a time, which may also adversely affect the mental state of the corpus. The corpus was willingly abandoned by his mother (petitioner No. 2), soon after the death of the son of opposite party No. 2 (Husband of petitioner No. 2) and since then the corpus is being taken care of by opposite party No. 4, who is the real grandfather of the corpus. The corpus is studying in a reputed school at Allahabad i.e. Army Public School. The custody of the corpus with his grandparents could not be termed as illegal more so on the ground when the corpus was abandoned by the petitioner No. 2. The corpus is studying in a reputed school at Allahabad i.e. Army Public School. The custody of the corpus with his grandparents could not be termed as illegal more so on the ground when the corpus was abandoned by the petitioner No. 2. It is further stated that soon after the death of the son of opposite party No. 4, petitioner No. 2 left the house in odd hours along with huge amount, which was provided by the State Government for the welfare of the corpus. Since the solemnization of her second marriage, she has not taken care of the corpus and abandoned him and there is no chance that the second husband of the petitioner No. 2 will accept the corpus in presence of his own two children from his earlier wife and therefore, the welfare of the corpus is in not transferring his custody to the petitioner No. 2, as corpus is emotionally attached with opposite party No. 4 and his wife. 4. A rejoinder affidavit was filed by the petitioner denying the contention of learned counsel for opposite party No. 2 taken in its counter-affidavit and in nut shell has stated that she being the natural guardian and biological mother of the corpus, has all rights to have the custody of her child and the corpus being of the age of only about 8 years, could not be allowed to remain with his grandparents and his care could only be taken by his mother. She has never abandoned the corpus and she is a working lady and has also got a plot in her name on which the construction is going-on. She is also having a fixed deposit of Rs. 10 lacs in State Bank of India and also filing income tax returns. In the year 2018-19 her income in the income tax return is shown as Rs. 3,32,366/- per annum. Copies of income tax returns pertaining to the year 2018-19, copy of the pass book of State Bank of India, photo copy of the sale deed dated 03.04.2017 in favour of the petitioner No. 2 have been placed at Annexure Nos. 1, 2 and 3 to the rejoinder affidavit. 5. 3,32,366/- per annum. Copies of income tax returns pertaining to the year 2018-19, copy of the pass book of State Bank of India, photo copy of the sale deed dated 03.04.2017 in favour of the petitioner No. 2 have been placed at Annexure Nos. 1, 2 and 3 to the rejoinder affidavit. 5. During the course of proceeding vide order dated 19.12.2018, the corpus was also summoned in the Court and on 17.01.2019, the corpus i.e. Master Rudra Pandey was produced in the Court and keeping in view the tender age, an interaction was made by the Court with him, wherein the corpus stated that he wants to live with his paternal grandparents and is happy there. On being categorically asked as to whether he wants to go with her mother, he spontaneously replied "No". 6. Learned counsel for the petitioner submits that the petitioner No. 2, who has filed this petition as the next friend of the corpus, is entitled to take the custody of her son as opposite party No. 4 or his wife is not entitled for the custody of her son and their grandson. He further submits that the age of the corpus is only 8 years and at such tender age, the old grandparents would not be in a position to take care of the corpus and therefore, the petitioner having sufficient means to take care of the needs of her son, be given the custody of the corpus. He further submits that the husband of the petitioner No. 2 i.e. Ashish Kumar Dubey has also consented to keep the corpus with him, therefore, it is also in the welfare of the corpus is that he be given in the custody of the petitioner No. 2, who is his natural guardian and biological mother. 7. Learned counsel for opposite party No. 4 while opposing the contention of learned counsel for the petitioner submits that soon after the death of his son-Sri. Sumit Pandey, petitioner No. 2 left their home as well as the corpus also and since then she did not take care of the corpus. 7. Learned counsel for opposite party No. 4 while opposing the contention of learned counsel for the petitioner submits that soon after the death of his son-Sri. Sumit Pandey, petitioner No. 2 left their home as well as the corpus also and since then she did not take care of the corpus. The petitioner No. 2 had remarried with Ashish Kumar Dubey, who has already having two children from his earlier wife and the future of the corpus with his foster father is not safe, as he will always be discriminated and feel neglected while adequate care of corpus being taken by opposite party No. 4 being his grandfather. He further submits that opposite party No. 4 and his wife, who are grandparents of the corpus, are doing everything, which is for the welfare of the corpus and is providing him quality education and he is studying in one of most reputed school of Allahabad and corpus as well as opposite party No. 4 and his wife (grand-parents) has developed a bond with each other as the corpus was abandoned by the petitioner No. 2 (mother), therefore the request of the petitioner for transferring the custody of the corpus to her be declined. 8. The factual matrix which reveals from the pleadings of the parties is that petitioner No. 2 was married Sri. Sumit Pandey in the year 2010 on he being murdered in the year 2016, she left her matrimonial home and as per the contention of learned counsel for opposite party No. 4, she walked out of her matrimonial home in the odd hours along with the money, which she received for the welfare of the corpus i.e. Rs. 20,00,000/- from State Government. While as per the contention of learned counsel for opposite party No. 2, she was turned out of her matrimonial home and did not abandon the corpus. However, the admitted position is that petitioner No. 2 left the corpus with his grandparents soon after the death of her husband. The fact of the remarriage of petitioner No. 2 with Sri. Ashish Kumar Dubey is also an admitted fact. It is also admitted to the parties that Sri. Ashish Kumar Dubey is working at Satna (M.P.) and he is also having two children from his earlier wife. 9. The fact of the remarriage of petitioner No. 2 with Sri. Ashish Kumar Dubey is also an admitted fact. It is also admitted to the parties that Sri. Ashish Kumar Dubey is working at Satna (M.P.) and he is also having two children from his earlier wife. 9. Hon'ble Supreme Court while considering the nature and scope of writ of habeas corpus in Kannu Sanyal v. District Magistrate, Darjeeling and others, reported in AIR 1973 SC 2684 observed as under: "It will be seen from this brief history of the writ of habeas corpus that it is essentially a procedural writ. It deals with the machinery of justice, not the substantive law. The object of the writ is to secure release of a person who is illegally restrained of his liberty. The writ is, no doubt, a command addressed to a person who is alleged to have another person unlawfully in his custody requiring him to bring the body of such person before the Court, but the production of the body of the person detained is directed in order that the circumstances of his detention may be inquired, or to put it differently, 'in order that appropriate judgment be rendered on judicial inquiry into the alleged unlawful restraint'." "The writ is primarily designed to give a person restrained of his liberty a speedy and effective remedy for having the legality of his detention enquired into and determined and if the detention is found to be unlawful, having himself discharged and freed from such restraint. The most characteristic element of the writ is its peremptoriness and, as pointed out by Lord Halsbury, L.C. In Cox v. Hakes (1890) 15 AC 506), 'the essential and leading theory of the whole procedure is the immediate determination of the right to the applicant's freedom' and his release, if the detention is found to be unlawful. That is the primary purpose of the writ; that is its substance and end." 10. The above observation of Hon'ble Supreme Court reveals that no doubt the basic purpose of entertaining a petition or writ of habeas corpus is to enquire the circumstance of detention should be to provide a person speedy and effective remedy, who has restrained by his liberty and if on an inquiry the detention is found to be unlawful, the detenue is to be released. The law relating to habeas corpus concerning transfer of custody of children has been discussed by Hon'ble Supreme Court in the case of Capt. Dushyant Somal v. Smt. Shushma Somal, reported in (1981) 2 SCC 277 : ( AIR 1981 SC 1026 ) and held that it is beyond question that a writ of habeas corpus is not to be issued as a matter of course particularly when the writ is sought against a parent for custody of a child. However, the Court goes on to observe further that all these does not mean that a writ of habeas corpus cannot or will not be issued against a parent who has snatched away a child from lawful custody of other parent. The Court in para 3 of the judgment has observed as under: "There can be no question that a writ of habeas corpus is not to be issued as a matter of course, particularly when the writ is sought against a parent for the custody of a child. Clear grounds must be made out. Nor is a person to be punished for contempt of court for disobeying an order of court except when the disobedience is established beyond reasonable doubt, the standard of proof being similar, even if not the same, as in a criminal proceeding. Where the person alleged to be in contempt is able to place before the court sufficient material to conclude that it is impossible to obey the order, the court will not be justified in punishing the alleged contemner. But all this does not mean that a writ of habeas corpus cannot or will not be issued against a parent who with impunity snatches away a child from the lawful custody of the other parent, to whom a court has given such custody. Nor does it mean that despite the contumacious conduct of such a parent in not producing the child even after a direction to do so has been given to him, he can still plead justification for the disobedience of the order by merely persisting that he has not taken away the child and contending that it is therefore, impossible to obey the order. In the case before us, the evidence of the mother and the grandmother of the child was not subjected to any cross-examination; the appellant-petitioner did not choose to go into the witness-box; he did not choose to examine any witness on his behalf. The evidence of the grandmother, corroborated by the evidence of the mother, stood unchallenged that the appellant-petitioner snatched away Sandeep when he was waiting for a bus in the company of his grandmother. The High Court was quite right in coming to the conclusion that the appellant-petitioner had taken away the child unlawfully from the custody of the child's mother. The writ of habeas corpus was, therefore, rightly issued. In the circumstances, on the finding, impossibility of obeying the order was not an excuse which could be properly put forward." 11. In another case of Rajesh Gupta v. Ram Gopal Agrawal and others (2005) 5 SCC 359 : ( AIR 2005 SC 2426 ), Hon'ble Supreme Court held that in a petition seeking writ of habeas corpus for custody of minor child the principal consideration for the Court is to ascertain whether the custody of the child can, be said to be lawful or illegal and whether the welfare of the child requires that the said custody should be changed and the child should be left in the care and custody of someone else. The said judgment reiterated the principles laid down by Hon'ble Supreme Court in the case of Saiyad Salimuddin v. Dr. Rukhsana (2001) 5 SCC 247 : ( AIR 2001 SC 2172 ), wherein it is held that in case of dispute pertaining to, the custody of the child, the paramount consideration is welfare of the child and not the legal right of either of the parties. The para 7 of the above reported judgment is reproduced as under: "It is well settled that in an application seeking a writ of habeas corpus for custody of a minor child, the principal consideration for the court is to ascertain whether the custody of the child can be said to be lawful or illegal and whether the welfare of the child requires that the present custody should be changed and the child should be left in the case and custody of someone else. It is equally well settled that in case of dispute between the mother and father regarding the custody of their child, the paramount consideration is welfare of the child and not the legal right of either of the parties. (See Veena Kapoor (Dr.) v. Varinder Kumar Kapoor ( AIR 1982 SC 795 ) and Syed Saleemuddin v. Dr. Rukhsana) : ( AIR 2001 SC 2172 ) It is, therefore, to be examined what is in the best interest of the child Rose Mala and whether her welfare would be better looked after if she is given in the custody of the appellant, who is her father." 12. Keeping in view, the above legal principles enunciated by Hon'ble Supreme Court, it reveals that primary consideration pertaining to deciding the custody of a child is to ascertain at first as to whether, the existing custody of the child can be termed as unlawful or illegal and once it is ascertained that the custody is illegal or unlawful, it is further to be visualized as to whether the welfare of the children or child requires that the present custody should be changed? There would not be two views pertaining to the fact that in any proceeding pertaining to the custody of a child, the paramount consideration is the welfare of the child. 13. Coming to the factual matrix of the present case, undisputed facts as are emerging out of the record is that the petitioner No. 2, after the death of her husband in the year 2016 stopped residing at her matrimonial home and left the corpus herself in the custody of the opposite party No. 4 and his wife (grandparents). This is also not disputed that petitioner No. 2 is now remarried with a person Amit Kumar Dubey, who is already having two children from his earlier wife. Therefore, the custody of the corpus with his grandparents by any stretch of imagination could not be termed as unlawful or illegal. Secondly, this Court has an occasion to interact with the corpus namely, Rudra Pandey, who during the course of interaction was conspicuous enough to told this Court that he wants to live with his grandparents and will not go with his mother. This shows the bond, corpus has developed with his grandparents especially during the period in which petitioner No. 2 was not with him for whatever reasons. This shows the bond, corpus has developed with his grandparents especially during the period in which petitioner No. 2 was not with him for whatever reasons. It is a settled law that the rights of the parties could not be decided in a habeas corpus petition and the same can be taken care of by an appropriate Court created for the purpose. 14. Keeping in view the above factual matrix, this Court is of the considered opinion that neither the custody of the corpus with his grandparents, even in the presence of his mother, is unlawful nor illegal, as the custody was itself given by the petitioner No. 2 to the grandparents or if the contention of the learned counsel for opposite party No. 4 is believed, petitioner No. 2 herself abandoned the corpus. Secondly the transfer of custody, especially when the corpus has developed a bond with his grandparents, is not in the welfare of the corpus, therefore, on both the scores, I am not inclining to accept the contention raised on behalf of petitioner No. 2, therefore, keeping in view, the reasons given herein above, I am not inclined to dislodge the present custody of corpus, which is with opposite party No. 4. In this view of the matter, keeping in view all facts and circumstances of this case, this habeas corpus petition filed by the petitioner is dismissed. 15. However, this judgment will not be preclude the parties to contest their claims for the custody of the corpus at any appropriate/regular proceedings before any appropriate court/forum.